# Kusum Devi v. State of U.P. and

- **Citation:** (2004) 2 ILRA 560
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-07-26
- **Case number:** Criminal Misc. Application No. 9993 of 1990
- **Bench:** Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kusum-devi-v-state-of-u-p-and-40246
- **Pages:** 2

## Headnote

Income Tax Act, 1961-Ss. 269-Ss., 276DE,
278B
and
276-DD-Criminal
prosecution for violation of S. 269-SS
punishable under S. 276 DE read with S.
278B-Held, there can be no prosecution
for a breach of S. 269 SS, if prosecussion
has been launched after deletion of S.
276 DD even if loan amounts were taken
by cash prior to that date i.e. 1.4.1989Secondly, liability under S. 278 B would
only arise provided any offence has been
committed-If there is no commission of
offence,
no
question
of
complaint
against Managing Director arises.

Held: Para 2

There can be no prosecution for a breach
of Section 269-SS, if the prosecution has
been launched after deletion of Section
http://www.allahabadhighcourt.nic.in
2 All] M/s Neera Chemicles Pvt. Ltd. V. Union of India
561
276 DD, even if, the loans amounts were
taken by cash, prior to that date i.e.
1.4.1989.
This
decision
has
been
followed by a learned Single Judge of
this Court in Criminal Misc. Application
No.
7508
of
1990,
Messrs
Sudhir
Chandra Sunil Kumar and others vs.
State of U.P. and others. Learned counsel
for the Income Tax Department fairly
concedes that this is the correct legal
position. So far as the other charge
relating to Section 278 B is concerned,
that imposes liability on parties, who are
in charge of a company. However, that
liability would only arise, provided that
an offence has been committed in the
first
place.
If
there
has
been
no
commission of any offence, then there
can
be
no
question
of
making
a
complaint
against
the
Managing
Director.
Case law discussed:
AIR 2003 SC 3126

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
560
counsel for the petitioner and the learned
Standing Counsel appearing for the
respondents.

Under the Rules of 1974, family has
been defined as under.

"(c) "family" shall include the
following relations of the deceased
Government servant:
(i) Wife or husband:
(ii) Sons;
(iii) Unmarried and widowed daughters;

3. From a perusal of the aforesaid
rules it is clear that son is included in the
definition of word "family".

The
question
that
arises
for
consideration is, whether a uterine son
could only be included in the definition
clause of "family" or whether a step son
could also be included.

4. In my view, the word "family"
has to be liberally construed. In Smt.
Kusum Devi Vs. State of U.P. and
others, 2001 (3) E.S.C. (All.) 1283, it
was held that a divorced daughter of the
deceased would be covered under the
definition of family and would be entitled
to an appointment under the Dying in
Harness Rules 1974. In Smt. Urmila
Devi Vs. U.P. Power Corporation,
Lucknow
and
others,
2004(1)
E.S.C.(All.) 180, it was held that a
daughter-in-law of the deceased son
would
be
also
covered
under
the
definition of family and would be entitled
for appointment.

5. In my view, a stepson would be
covered under the definition of word
'family' and would be entitled for
appointment.

6. In view of the aforesaid, the writ
petition is allowed and the impugned
order
dated
3.6.98
passed
by
the
respondent No.2 (filed as Annexure No.7)
is quashed. The petitioner would be
entitled to continue in service as a legal
heir of the deceased.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.7.2004

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Application No. 9993 of 1990

M/s Neera Chemicals P. Ltd. and another

...Applicants
Versus
Union of India

...Respondents

Counsel for the Applicants:
Sri Raghuraj Kishore

Counsel for the Respondent:
Sri Ashok Kumar
Sri Bharat Ji Agarwal
S.C.

Income Tax Act, 1961-Ss. 269-Ss., 276DE,
278B
and
276-DD-Criminal
prosecution for violation of S. 269-SS
punishable under S. 276 DE read with S.
278B-Held, there can be no prosecution
for a breach of S. 269 SS, if prosecussion
has been launched after deletion of S.
276 DD even if loan amounts were taken
by cash prior to that date i.e. 1.4.1989Secondly, liability under S. 278 B would
only arise provided any offence has been
committed-If there is no commission of
offence,
no
question
of
complaint
against Managing Director arises.

Held: Para 2

There can be no prosecution for a breach
of Section 269-SS, if the prosecution has
been launched after deletion of Section
http://www.allahabadhighcourt.nic.in
2 All] M/s Neera Chemicles Pvt. Ltd. V. Union of India
561
276 DD, even if, the loans amounts were
taken by cash, prior to that date i.e.
1.4.1989.
This
decision
has
been
followed by a learned Single Judge of
this Court in Criminal Misc. Application
No.
7508
of
1990,
Messrs
Sudhir
Chandra Sunil Kumar and others vs.
State of U.P. and others. Learned counsel
for the Income Tax Department fairly
concedes that this is the correct legal
position. So far as the other charge
relating to Section 278 B is concerned,
that imposes liability on parties, who are
in charge of a company. However, that
liability would only arise, provided that
an offence has been committed in the
first
place.
If
there
has
been
no
commission of any offence, then there
can
be
no
question
of
making
a
complaint
against
the
Managing
Director.
Case law discussed:
AIR 2003 SC 3126

(Delivered by Hon'ble Amar Saran, J.)

1. Heard learned counsel for the
applicants Sri Raghuraj Kishore and Sri
Ashok
Kumar,
learned
counsel
for
Income Tax Department.

2. The allegations in this case were
that the applicants are said to have taken
three loans in cash and not by cheques or
bank drafts in the assessment year 198698 totaling Rs.21,000/-. In this manner
they are said to have violated the
provisions of Section 269 SS of the
Income Tax Act, 1961 punishable under
Section 276 DE of the Income Tax Act,
1961 read with Section 278 B. Now this
complaint was dated 24/25.5.1989. I find
that Section 276DD has been omitted with
effect from 1.4.1989. There is a decision
of Hon'ble Supreme Court in the case of
Messrs. General Finance Co. and another
v. Assistant Commissioner of Income
Tax, Punjab, AIR 2002 SC, 3126, wherein
it has been held that there can be no
prosecution for a breach of Section 269SS, if the prosecution has been launched
after deletion of Section 276 DD, even if,
the loans amounts were taken by cash,
prior to that date i.e. 1.4.1989. This
decision has been followed by a learned
Single Judge of this Court in Criminal
Misc. Application No. 7508 of 1990,
Messrs Sudhir Chandra Sunil Kumar and
others vs. State of U.P. and others.
Learned counsel for the Income Tax
Department fairly concedes that this is the
correct legal position. So far as the other
charge relating to Section 278 B is
concerned, that imposes liability on
parties, who are in charge of a company.
However, that liability would only arise,
provided that an offence has been
committed in the first place. If there has
been no commission of any offence, then
there can be no question of making a
complaint against the Managing Director.

3. In this view of the matter, the
application
succeeds
and
criminal
proceedings in case No. 265 of 1989
(Union of India vs. M/s Neera Chemicals
Private Limited and another) pending in
the Court of C.J.M., Kanpur and others
are quashed.
Proceeding quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2004

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No.3844 of 1985

M/s U.P. State Sugar Corporation Ltd.

...Petitioner
Versus
The Labour Court, U. P. and another

 ...Respondents